The Federal Mining and Smelting Co.

In the Matter of THE FEDERAL MINING AND SMELTING COMPANY, A CORPORATION and MULLAN LOCAL No. 9, INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS Case No. C-930.-Decided February 5, 1940 Lead and Zinc !Mining and Milling Industry-Interference, Restraint, and Coercion: distribution of anti-union handbills on respondent's property aided by supervisory official ; blowing of respondent 's whistle in conjunction with anti- union demonstration ; participation by supervisory officials in parade celebrating defeat of sister unions at neighboring mines ; charges of discriminatory speed up and lengthening of hours, dismissed-Discrimination: charges of, dismissed. Air. Wm. A. Babcock, Jr., and Mr. Daniel Baker, for the Board. Mr. Chas. W. Beale, of Wallace, Idaho, and Mr. R. Worth Vaughan, of New York City, for the respondent. Mr. Willard Young Morris, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Mullan Local No. 9, International Union of Mine, Mill and Smelter Workers, herein called Local No. 9, the National Labor Relations Board, herein called the Board, by Robert M. Gates, Acting Regional Director for the Nineteenth Region (Seattle, Washington) issued its complaint dated May 25, 1938, against The Federal Mining and Smelting Company, a corporation, Wallace, Idaho, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices, the complaint, as amended, alleges, in substance : (1) that the respondent between August 25 and December 17, 1937, discriminatorily discharged nine named em- ployees; (2) that the respondent discriminatorily gave less desirable employment to two named employees; (3) that the respondent dis- 1 The complaint was amended at the hearing on motion by the Board , and following the bearing by stipulation between the Board and the respondent. 20 N. L. R. B., No. 17. 192 . THE FEDERAL MINING AND SMELTING COMPANY 193 criminatorily refused to give steady employment to another named employee ; and (4 ) that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and Local No. 9. The respondent, in its answer duly filed and amended, denied that it had engaged in or was engaging in the unfair labor practices alleged. Pursuant to notice , a hearing was held in Wallace, Idaho, from June 6 to 14, 1938, before Thomas S. Wilson, the Trial Examiner duly designated by the Board . The Board and the respondent were repre- sented by counsel and all participated in the hearing . Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing , the Trial Examiner made various rulings on motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. Thereafter , the Trial Examiner filed his Intermediate Report, dated September 17, 1938, in which he found that the respondent had committed unfair labor practices affecting commerce within the mean- ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, recommended that the respondent cease and desist from such unfair labor practices and take certain affirmative action remedial of their effect, and recommended that the complaint be dismissed as to Andrew Legall, alleged to have been discriminatorily refused steady employ- ment. On October 15, 1938, the respondent filed exceptions to the Intermediate Report. Thereafter , the respondent filed its brief. Oral argument upon the exceptions to the Intermediate Report was waived by the parties. The Board has considered the respondent's exceptions to the Intermediate Report and its brief in support thereof, and, in so far as the exceptions are consistent with the findings , conclusions, and order set forth below, finds them to have merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Federal Mining and. Smelting Company is a Delaware corpora- tion having its principal place of business in New York City. It is, engaged in the business of mining and concentrating lead and zinc: ores in Idaho, Oklahoma, Kansas, and Missouri. The present contro- versy is confined to its employees working at the Morning Mine, which is located a short distance from Mullan, Idaho, in the Coeur d'Alene 1 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mining District. The respondent there employs approximately 647 employees. The ore from the Morning Mine is reduced by a flotation process at a mill , which is operated in conjunction with the mine, to lead and zinc concentrates, all of which are sold f. o. b. Morning Mine to the Anaconda Copper Mining Company and the American Smelt- ing and Refining Company, to whose smelters in Montana the con- centrates are shipped. In 1937 there were sold and shipped from the respondent's Morning Mine to smelters located in Montana, 32,756 tons of lead concentrate and 35,301 tons of zinc concentrate. During the same period the respondent purchased approximately $331,000 worth of raw materials and supplies for use in the Morning Mine, approximately 66 per cent of which were shipped to the Morning Mine from States other than Idaho. II. THE LABOR ORGANIZATION INVOLVED Mullan Local No. 9, International Union of Mine, Mill and Smelter Workers, is a labor organization affiliated with the Congress of In- dustrial Organizations. It admits to membership employees of the respondent at the Morning Mine. III. THE UNFAIR LABOR PRACTICES A. Backgrounzd Between 1933 and 1935, Local No. 9 organized a substantial number of the respondent's employees at the Morning Mine. A decline in its membership occurred in 1935, which continued until the latter part of 1936. Local No. 9 then began an organizational drive and by"May 1937, succeeded in enrolling a, large majority of the respond- ent's employees. On May 6, 1937, Local No. 9 submitted to the re- spondent a proposed contract containing a clause providing for a closed shop. The respondent rejected the proposed contract and on May 13, submitted a counterproposal, in which it offered Local No. 9 limited recognition as the representative of its membership. This proposal was not satisfactory, and Local No. 9 called a. strike on May 14. The strike ended on June 9, 1937, on which date the respondent and Local No. 9 entered into a written contract for 1 year in which Local No. 9 was recognized as the exclusive representative of the respondent's employees. There was no attempt to operate the mine during the strike, the only work done being minimal care of the shafts. Following the strike the respondent put the strikers back to work as quickly;as the,condition of the mine safely permitted. THE FEDERAL MINING AND S'iIELTING COMPANY 195 B. Interference, restraint, and coercion In August 1937, a strike was in progress at the Sunshine Mining Company's properties located a few miles from the Morning Mine. The strike had been called by two locals other than Local No. 9 of the International Union of Mine, Mill and Shelter Workers. On Saturday, August 7, Al Hodgins, the respondent's chief electrician and a supervisory employee having the power to hire and discharge, gave handbills to some of the employees as they passed the "light- house," a place where the men get their lights, and told at least one of them to "be there," meaning thereby, to attend the demonstration announced by the handbills. The handbills announced that a. demon- stration against the striking labor organization would be held the following morning and called on workers from four different mines, including the Morning Mine, to attend the demonstration.' The handbills fuither'stated that the whistles would be "tied down at all mines from 7 a. in. to 9 a. in. so all members ' will appear on time." The following morning the whistle of the Morning Mine blew for a period of a few minutes, although it was not customary for it to blow on a Sunday morning. During the course of the day a parade was held in celebration of breaking the strike at the Sunshine Min- ing Company properties. This parade went through Kellogg, Wal- lace, and Mullan, mining towns located in the Coeur d'Alene region. During the course of the parade certain participants tore down the street signs of the locals of the International Union of Mine, Mill and Smelter Workers in Kellogg and Wallace and were thwarted in their attempt to tear down the sign of Local No. 9 in Mullan only by the vigorous resistance offered by members of the last-named local. 9 The handbills, in bold type, bore the following inscription : NOTICE The 356 Members from the Sunshine 400 From the Morning 450 From the Heela 400 From the Bunker Hill Will Meet McGuire At the Sunshine Aline at 8: 00 A. M. SUNDAY MORNING August 8th The Men Will Form in Military Formation- McQuire (sic) and His Men In The Same Order THEN A VOTE WILL BE TAKEN The Whistles will be Tied Down At All Mines From 7 a. m. to 9 a . m., So All Members Will Appear On Time. If McGuire Does Not Appear the Strike Will Be Considered Lost. He Must Face Some 1500 Men. Leave Your Women and Firearms At Home The significance of the word "members" is not explained by the record. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Among those participating in the so-called "victory" parade were Earl Brasher, general mine foreman at the Morning Mine, and L. E. "Red" Fisher, one of Brasher's two assistant foremen. These two officials were seen by some of the respondent's employees to take part in the parade as it passed through Mullan. The respondent's general manager stated at the hearing that it was not the policy of the respondent to permit the distribution of handbills on its property such as occurred on August 7, as described above. Regardless of such policy, Hodgins, a supervisory official who had the power to hire and discharge, not only aided in the distribu- tion of these anti-union pamphlets, but added his own admonition to attend the demonstration. We find that the respondent is respon- sible for Hodgins' acts 4 and that by such acts the respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.5 None of the respondent's officials testifying at the hearing, who were asked concerning the blowing of the Morning Mine whistle on August 8, admitted knowing the identity of the responsible parties. However, the blowing of the whistle was forecast on August 7, by the handbills, referred to above, and the respondent's chief electrician distributed the handbills and urged the respondent's employees to participate in the demonstration. Moreover, the respondent's general foreman and assistant foreman took part in the parade announced by the blowing of the whistle. Under these circumstances, we do not believe that the mine whistle was blown without the knowledge and sanction of the respondent, and we find that the respondent was responsible for it. It is the respondent's position that it is not responsible for the participation of Brasher and Fisher in the "victory" parade on August 8. We cannot agree with that contention. Such acts of the respondent's supervisory officials, especially under the circumstances I ieretofore, described, are intended to and necessarily do interfere with and restrain the employees' free exercise of their rights under the Act. Mu]lan, Idaho, is located approximately one mile from the Morning Mine. Almost all the Morning Mine employees reside in Mullan. The parade took place on a Sunday, when most of the employees were at home. Brasher and Fisher in participating in the parade could not but realize that they would be seen by employees who 4 See Swift d Company v. National Labor Relations Board , 106 F. ( 2d) 87 (C: C. A. 10) ; International Association of Machinists, etc. V. National Labor Relations Board, 110 F. (2d) 29 (Ct. App. D. C.) ; National Labor Relations Board v. A. S. Abell Company , 97 F. (2d) 951 (C. C. A. 4) ; National Labor Relations Board v. American Mfg. Co., 108 F. (2d) 81 (C. C. A. 2). 5 See National Labor Relations Board v . A. S. Abell Company, 97 F. (2d ) 951 (C. C. A. 4) ; International Association of Machinists, etc., v. National Labor Relations Board, 110 P. (2d) 29 (App. D. C.) THE FEDERAL MINING AND S'NIELTING COMPANY 197 worked under their supervision and who were members of Local No. 9. Under these circumstances we find that the respondent is charge- able with the anti-union act of its agents and we further find thal by the blowing of the mine whistle and the participation of Brasher and Fisher in the parade the respondent ratified and approved the anti-union demonstration, and thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act. The complaint alleges that following the strike at the Morning Mine and after work was resumed, the respondent for discriminatory' reasons made work and conditions more difficult by imposing new restrictions and denying privileges previously enjoyed. The evi- dence does not support this allegation. The evidence shows that following the strike, and pursuant to the terms of the contract, the portal-to-portal time 6 of most of the employees in the mine was re- duced by approximately one-half hour. A group of shaft mainte- nance men, numbering from 50 to 80 employees, however, who prior to the strike worked 8 hours portal-to-portal, following the strike were obliged to work 81/ hours portal-to-portal, two weeks out of six. This was the maximum portal-to-portal shift as fixed by the contract.. Prior to the strike a special train had been run for the shaft maintenance men which was discontinued following the strike. The respondent explains that it was obliged to rearrange its schedule of trains as part of a necessary adjustment to meet the shortened hours for most of the men and at the same time approximate "the results . . . had on the longer time." The record is not clear con- cerning the necessity for or expediency of discontinuing the special train for the shaft maintenance men. It is undisputed, however, that the respondent was abiding by the terms of its contract with Local No. 9 concerning the portal-to-portal time of all its employees.? Under such circumstances we find that the respondent did not thereby interfere with, restrain, or coerce its employees within the meaning of Section 8 (1) of the Act. Witnesses also testified that following the strike there was a speed- up in the work. The only specific complaint in this connection was that supervisory officials acting upon instruction made their men arrive at their working places just as soon as possible, whereas before the strike, pushers and shift bosses were permitted to use their own judgment about such matters. The former president of Local No. 9, 6 The time from entering until leaving the mine. * In accordance with the provisions of the contract, the Union presented a grievance to the management on behalf of the shaft maintenance men. The matter was discussed on two occasions by representatives of the Union and the respondent. The respondent insisted that the change was necessary and within the terms of the contract and refused to alter its train schedule. 26'031-41-vol. 20-14 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .who testified concerning the alleged speed-up, admitted that this situation improved after a while and at the time of the hearing was much better. The respondent introduced evidence to show that a certain amount of damage to the'shafts and mine had resulted from their not being properly maintained during the strike; and that upon resumption of work there was some confusion incident to the restora- tion of normal operations. The evidence' fails to warrant a finding that the respondent instituted a speed-up in work to interfere with, restrain, and coerce its employees in the exercise of the rights guar- anteed in Section 7 of the Act. C. Alleged discrimination in regard to hire and tenure In determining the issue of discrimination, we have given due re- gard to two general considerations, applicable to all the discharges, namely : first, the extent of Local No. 9's membership among the respondent's employees; and second, the respondent's policy and prac- tice governing reinstatements. Kenneth Harper, former financial secretary of Local No. 9, testi- fied that on July 1, 1937, Local No. 9 had 600 members; that while there was some diminution of membership in July and August, by transfer of members 8 and withdrawal, Local No. 9 began to regain such losses in September. There is no testimony concerning mem- bership strength after September 1937. The respondent employed an average of 647 employees per,day in 1937. The allegation of dis- crimination in the discharges under consideration must be evaluated in the light of Local No. 9's preponderance of membership among the respondent's employees. With respect to the second consideration, the respondent had a well- defined policy governing hiring and reinstatements which was effected through a practice known as "rustling." The term "rustling" means applying for work and operates, briefly, as follows : An applicant for work must first file a written application at the respondent's em- ployment office and as a job becomes available the applicant is given l work card which he takes to the "dry" s where he waits from 1 to 3 days before being assigned to work by a foreman. Men who have never before worked for the respondent must "rustle" as must men who have been laid off or discharged. In the case of an employee dis- charged for the first time, the respondent's policy is to permit the man to "rustle" after a period of 10 days following his discharge. When a man has been twice discharged, the respondent's policy is to make 9 The transfer of a member to another local of the same International , effected when the member finds other employment. 9 A building near the entrance of the mine where the underground workers wash and change clothes. THE FEDERAL M'IN'ING AND SMELTING COMPANY 199 him wait 30 days before permitting him to "rustle." The length of time a man may "rustle" before being given a work card which assures him employment varies, necessarily, according to conditions in the mine. This policy and practice was* in effect and was known to the employees at the time of the discharges under consideration and the opportunity to rustle in accordance with the conditions outlined above was available to the discharged employees. Aho and Huotari Bernard Alto had worked for the respondent a little over a year as a shaftman, when he was discharged on August 25, 1937. He joined Local No. 9 in November 1936, served on one committee, but never held office. He was active in soliciting new members, being particularly qualified because of his knowledge of both the English and Finnish lauguages.10 He was active during the strike in 1937, doing special guard duty, distributing literature, and keeping records of nine differ- ent guard posts. William Huotari started to work for the respondent in August 1935, as a miner. He was promoted to the job of shaft repairman in De- cember 1935, at which he worked until his discharge on August 25, 1937. He joined Local No. 9 in January 1936, and, like Aho, was active in organizing and soliciting members, especially among the Finnish employees. In 1937 he was elected to the office of vice presi- dent. During the course of the strike he was active as a guard captain. On August 24, 1937, Aho and Hjalmar Abramson, president of Local No. 9, were assigned to clean the snuck out of a hoist room 11 at the 3850-foot level of the mine. The following day Huotari replaced Abramson and worked with Aho, cleaning the muck out of the hoist room. The men did 31/z cars of muck that day. When they had finished their shift, they went to the top station. While they were sitting in a car waiting to go out of the mine, their pusher'12 Bagley'13 gave them their time cards. Aho asked Bagley the reason for this action and was told by Bagley that they were discharged "for not doing enough." The appropriate committee of Local No. 9 presented a grievance to the respondent's officials, urging that Aho and Huotari had been dis- charged without justification because working conditions had been such in the hoist room on August 25 that the men had not been able to do more than three and one-half cars of mucking. An investiga- 10 Many employees of the respondent are of Finnish extraction. "The hoist room, 41 feet long , 23 feet wide , and 18 feet high, was being prepared in conjunction with an offset shaft, which was necessary to place operations on lower levels. A pusher is a shift boss in shaft work. ?? Bagley had been an active member of Local No . 9 and participated in the strike. He was made a shift boss in the fall of 1937 . Sometime after the strike he was heard to question whether Local No. 9 had gained anything by its having called the strike. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion was made by the respondent's officials and statements taken from supervisory officials who had contact with the men or their work- The respondent's management upheld the discharges. During the strike Huotari acted as guard captain on the picket line. Walters, general superintendent of the Morning Mine, Brasher, a mine foreman, and Eastman, a shaft foreman, were going through the picket line one day when Huotari stopped Eastman and asked him "to go home." Walters asked Huotari why he had stopped Eastman. In the course of the argument which ensued, Walters told Huotari that he was a "marked man" as far as the respondent was concerned, and that, if violence broke out during the strike, he would swear out a warrant against Huotari for inciting a riot. The two men parted peacefully. Eastman did not go through the picket line. The record further discloses that about a month after the strike, Foreman Eastman, Bagley's immediate superior, was dissatisfied with the work of Huotari and Abramson and told Walters that he wanted to discharge them. Walters, however, prevailed on Eastman not to discharge the men, pointing out that because of their union promi- nence, discharging them might be interpreted as being aimed at Local No. 9. The respondent contends that Aho and Huotari were discharged because they did less than a full day's work. The rock and muck which Aho and Huotari were assigned to clean out had been blasted nearly a year before and had settled and become hard so that it was necessary to pick it loose. At times the section of the hoist room in which they were working was somewhat removed from the cars, making it necessary either to carry the muck or handle it twice. The shifts preceding and following the shift resulting in the discharges mucked substantially more. However, on one of these two shifts the shift boss worked along with the men. Neither Aho nor Huotari had "rustled" at the time of the hearing, although acquainted with the respondent's reinstatement practice." While the proof does not establish that Aho and Huotari were derelict in performing their work, the evidence does not warrant a. finding that their discharge was discriminatory. We find that the respondent did not discriminatorily discharge Aho and Huotari within the meaning of Section 8 (3) of the Act. Roundtree, Kathka, and Harker Louis Roundtree went to work for the respondent in September 1937, as a repairman. In the middle of November he was made a 14 The respondent, in a brief filed with the Board in November 1938, states that Aho and FIuotari "have recently applied for reemployment and have been put back to work as shaftmen." THE FEIVERAL MINING AND SMELTING COMPANY 201 timberman. The record fails to disclose when he joined Local No. 9. It is clear that he was interested in joining and in October or Novem- ber 1937, expressed his intention of joining as soon as he could "af- ford it." There is no evidence that he engaged in any outstanding .activities on behalf of Local No. 9. Pollie Kathka went to work for the respondent in April 1937, :starting in as a. mucker and later becoming a timberman's helper. He joined Local No. 9 in May 1937, and engaged in picketing during the course of the strike. Harry Harker went to work for the respondent as a miner in June 1937, after the strike. He joined Local No. 9 in July 1937, but had previously belonged to another local of the same International. He openly discussed labor unions and thought that his shift boss, Peterson, knew that he was a member of Local No. 9. On December 4, 1937, Peterson, the shift boss, ordered Roundtree and Kathka to put in some timbers in a pocket that had caved in. In the course of this work they found that they needed assistance, because of the size and, weight of the timbers. Kathka got Harker and an employee named Scribner, who were working on the floor below, to assist them. The four men had put a large timber in position when they realized that it was nearly time to go to lunch. The men dis- cussed the matter and decided that they would work into the lunch hour and finish the job rather than lose the benefit of the work which they had already done.15 They went ahead with their work but had to stop when they encountered it support which had to be cut. They then decided to take their lunch before doing the cutting. According to their own testimony, they started for lunch at about 7: 15 p. in., 15 minutes after the beginning of the regular lunch hour.16 When they finished their lunch, they started back, according to their testi- mony, at about 7: 40 p. in. and on the way met their shift boss, Peter- son. The latter asked them where they had been and they told him that they had been "at lunch." Peterson said, "Just turn around and go on back and eat some more." Peterson called for a cage and was asked by Fisher, an assistant foreman, why he wanted it. Peterson told Fisher that he was discharging the men for taking too much time for lunch. On the way out the men encountered Fisher.. The men left the mine and reported the discharge to Local No. 9. Peterson testified that he met the men returning from lunch at 7: 52 p. m. and that they did not explain to him why they were late. The men testified that they attempted to tell Peterson but that he would not listen to them. There is no evidence that they told or at- tempted to tell Fisher the reason for their tardiness. 15 Had they stopped they would have been obliged to place the heavy timber in position a second time. 11 The lunch hour on this shift begins at 7: 00 p. m. and ends at 7 : 30 p. m. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is unnecessary to resolve the conflict in the testimony as to the exact time that these men were met .by Peterson. It is undisputed that they were late. Peterson had been ill for some time preceding the above incident and instead of eating his lunch with the men was spending his lunch hour on an upper level. J. L. Berg, the respond- ent's general superintendent, testified that Peterson told him that he had suspected that because of his being away during the lunch hour, his men were taking longer than they should have for their lunch. Roundtree and Scribner "rustled" for jobs in January 1938, and were reinstated within a few clays. Kathka and Harker did not "rustle." Scribner was not a member of Local No. 9, and yet he was discharged with the others. While it may well be that Peterson was excessively harsh in discharging the men for, being late in returning from lunch under the circumstances here disclosed, from all the evidence we find that the respondent did not discriminatorily discharge. Roundtree, Kathka, and Harker, within the meaning of Section 8 (3) of the Act. The complaint, as amended, further alleges that after Roundtree resumed work he was demoted to a less desirable position. Roundtree, on resuming work, on January 20, 1938, worked as a timberman. Between January 27 and February 14 he did not work because of a wrecked shaft. He resumed work on February 14 and was assigned to mucking. He continued to muck until March 11 when he was made a, timberman's helper at which job he was working at the time of the hearing. A timberman's helper receives 50 cents less per day than a timberman. The record shows considerable fluctuation of jobs and transfers of employees: While it is true that at the time of the hearing .Roundtree was earning 50 cents less per day than when he was work- ing as timberman, the mere fact that he was advanced from mucker to timberman's helper tends to negative the allegation of discrimina- tory demotion. From all the evidence we find that the respondent did not discriminatorily demote Roundtree. Licht and Russell Fred Licht first worked for the respondent from September 1935 to March 1936, when he voluntarily quit. He returned to the re- spondent's employ in August 1936, starting in as a mucker and was soon promoted. to the job of timberman's helper. During most of the following 6 months Licht worked on the main level. Licht was then given an opportunity to do temporary sampling of ore extracted by a, leaser in the respondent's Morning Mine. He worked at sampling for approximately a week. Licht was then assigned to work under a timberman named Lunen in an air raise, a special THE FEDERAL MINING AND SMELTING COMPANY 203 shaft which is used for ventilation purposes. Following the strike, Licht again worked under Lunen at various repair jobs and then returned to the air raise. A month or so later Licht absented him- self from work without making proper arrangements. On his return he was temporarily assigned to sampling ore and on the return of the regular sampler was given other work. Because Licht was occasionally used at sampling, another man had been sent to work in the air raise. Licht was placed as a timberman's helper on the 2800- foot level under Shift Boss Couch. He was soon thereafter assigned to timberjerking, a job classification which pays the same as timber- helping, but which is harder work. Working conditions were not so desirable on the 2800-foot level as they had been on the main level and in the air raise. Licht suffered from an attack of boils, which he attributed to working conditions at the 2800-foot level. He ap- pealed to his official superiors, asking that he be returned either to sampling ore or to the work on the air raise. The respondent's gen- eral superintendent explained that he could not then place him back at sampling, but that he was sure that they could find a place for him where he would be more comfortable. Around October 1, 1937, Bagley, who had replaced Couch as shift boss, told Licht that they no longer had any need for timberjerkers and gave Licht his choice of doing mucking or timberhelping. Licht chose to do mucking, because, he testified, in doing mucking a man is not subject to blame for the work of another, whereas a timberman's helper is to a- degree dependent upon the timberman under whom he works. Licht joined Local No. 9 in November 1936. He was active in soliciting members and organizing a cooperative store. During the strike in June 1937, he drew cartoons, one of them pertaining to the respondent. Licht.,also worked on the sign board in front of,-Local No. 9's office. The amended complaint alleges that Licht was discriminatorily given less desirable employment, because he joined and assisted Local No. 9. We have briefly reviewed Licht's employment experience- It demonstrates that he did several kinds of work, which was not unusual in a mine the size of the Morning Mine. Since the respond- ent explained that it preferred to have especially trained men do its sampling work regularly, and there is no showing that this was an unwarranted preference, we cannot say that by not retaining Licht, who was not so trained, in that work permanently, it thereby dis- criminated against him. Similarly, the respondent's action in as- signing another man to work regularly on the air raise was not unreasonable since Licht at the time was subject to call to do tem- porary work.at sampling. Finally, Licht's shift boss, Bagley, gave Licht his choice between two jobs, timberhelping and mucking. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Licht chose the one which pays less, and which many mine workers would regard as less desirable. We find, from all the evidence, that the respondent did riot discriminatorily demote Licht. On or about November 17, 1937, while Licht was working as a mucker, Foreman Brooks told Shift Boss Bagley that Licht and his coworker were to be fired unless they completed a certain amount of work each shift. Bagley delivered the message to Licht. Licht and another man, referred to in the record as a Spaniard, attempted to do the work. Licht became ill from the condition of the air and told Bagley he would not be able to complete the assignment. Bagley sympathized with them, admitting that under the conditions they had done a day's work, but reminding them of Brooks' warning. Licht and the Spaniard, deciding that, in view of the little time left on the shift, it would be impossible for them to finish the allotted amount of mucking, quit working. They were discharged. Local No. 9 presented a grievance to the management concerning Licht's discharge.", The respondent's supervisory officials investi- gated the case, and reinstated Licht to his job as mucker under Bagley, giving him back pay for two of the 4 days he lost.18 Licht accepted this offer of partial reimbursement. The respondent took the position that Licht was dilatory in pursuing his grievance; that he could have obtained reinstatement sooner had he been diligent. While it would appear that Brooks' order was unreasonable, we do not think that Licht was discriminatorily discharged. The respond- ent's subsequent reinstatement of Licht with partial reimbursement for pay lost are fair indicia of the respondent's attitude toward the dis- charge. Bagley, Licht's shift boss, in the course of the respondent's investigation of the case, stated that he felt that Licht had done a fair day's work. As will be indicated in discussing other discharges, Fore- man Brooks was inclined to be severe, regardless of union membership, repeatedly issuing warnings that the men do a certain job on pain of discharge. On all the evidence we find that the respondent did not discriminatorily discharge Licht on November 17, 1937. "The record fails to show whether or not the Spaniard was a member of Local No. 9 and whether or not he was ever reinstated. is Paragraph 4 (e) of the contract provides : ". . . In the event an employee shall be discharged from his employment and he believes he has been unjustly dealt with, such discharge shall constitute a case arising under the method of adjusting grievances herein provided . In the event it should be decided under the rules of this agreement that an injustice has been dealt the employee with regard to his discharge , the Company will re- instate such employee and pay him one-half (1,) time at the regular rate for all time lost. Such discharge cases shall be taken up and disposed of within five (5 ) days from date of discharge . This shall be tried for a period of three ( 3) months as a trial period, and if, by mutual agreement, it is found not to have been abused . shall continue for the duration of this agreement with full time substituted for one-half time." This was the first case governed by the contract in which the respondent reimbursed a discharged employee for time lost. It occurred more than 3 months after the effective date of the contract . The record does not disclose whether or not "by mutual agreement" the method of handling discharges was "found not to have been abused." THE FEDERAL MININIG AND SMELTING COMPANY 205 Harold Rws$eil entered the respondent's employ in July 1937, as a timberman 's helper. He was later made a timberman . He joined Local No. 9 in July 1937. He testified that he talked freely about labor unions. - - On December 13, 1937, the foremen in the Morning Mine instructed the shift bosses and pushers under them to tell their men that they were no longer free to use the drilling water for washing purposes. Previously the men customarily stood under the water with their clothes on to wash off the mud. The evidence as to the exact nature of the order transmitted by Bagley to his men is in conflict, Bagley insisting that he forbade them to use any water at all, which testimony is corroborated by some of his men, and Licht and Russell asserting that the only order they received was an order against washing their clothes. The respondent's manager testified that he would not ap- prove an order that banned hand washing . We find that Bagley's instructions forbade the use of water for more than washing hands. On December 14, 1937, Bagley came upon Licht and Russell as they were using the water. The testimony is in conflict concerning the ex- tent to which they were using it. Bagley says that as he approached the men Russell had been standing under it and Licht was just going to stand under it. Licht and Russell both testified that they washed only their hands and arms. Licht's coworker, a man named Bryant,l9' testified that he walked past the men as they were using the water, and saw them washing their hands , arms, and shoulders. Bryant re- marked to them as he passed that they were jeopardizing their jobs. We find that Licht and Russell used the water in disregard of the instructions given them. Bagley reproached Licht and Russell for using the water contrary to orders, but told them that he - would "let it go" if they could get the, other employees , who were present when they washed, to keep quiet about the matter and if they did not talk about it themselves. The men left the mine and went to the Dry, where they washed and changed their clothes. Bagley there gave them their cards, telling them that they were discharged . Bagley, in explaining this action , testified that Licht and Russell on the way out of the mine told "everybody" about A he incident. Since Licht and Russell did not deny talking about it as Bagley testified, we accept Bagley's testimony . Bagley further testified that, in view of the men's having disregarded the order, and publicizing their disregard of it, to protect his own job he was forced to discharge them. Neither Licht nor Russell had "rustled" at the time of the hearing. Under all , the circumstances, we find that Licht and Russell dis- regarded•an.order. - Their shift boss-gave them a temporary reprieve, "A witness for the Board. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which they by their own conduct caused to be withdrawn. We find that the respondent did not discriminatorily discharge Licht and Russell. Elmer Lobb and Orville Lobb Elmer Lobb went to work for the respondent in April 1936, as a mucker. Within the following few weeks he was made a timberman's helper and then a timberman. He worked as a, timberman for the better part of a year, until he was discharged 20 when he failed'to accomplish an assignment of work, which Foreman Brooks had given to him with a warning that it had to be completed within a specified time. He returned to work about a week later, after having "rustled." Elmer joined Local No. 9 in May 1937. He took an active part in the strike. Orville Lobb first worked for the respondent in April 1937. He, started as a mucker but was soon advanced to the job of timberman's helper. He joined Local No. 9 in May.1937, and, like his brother Elmer, took an active part in the strike. Elmer and Orville Lobb were informed of the rule against using water by their shift boss. According to Brooks, word came to him that the men were not observing the rule against using drilling water. Brooks, Fisher, and Brasher, all foremen, decided to "pinch down tight" on the men and penalize them if they disregarded the rule. On December 17 Brooks reported on the shift and was told by Foreman Fisher that someone was washing clothes on the 3600-foot level and that the water could be seen running down the stope. Brasher over- heard the remark and told Brooks to investigate it. As Brooks went about his regular duties he encountered Bagley on the 2800-foot level, Bagley inquired why all the men could not use the water since some of them were using it. In answer to a question from Brooks, Bagley related that he had been told that there was someone washing clothes in a certain part of the mine. Brooks went there to investigate. As Brooks approached the section of the mine referred to by Bagley, he saw two men sitting in a stope. He sat there 15 or 20 minutes watching them, during which time they did not work. Brooks was sitting with his light turned to the wall so that he would not be seen. The Lobb brothers then turned the water on and, according to Brooks, washed off their clothes. Elmer admitted washing his hands and arms. Orville denied washing. It is unnecessary to resolve the con- flict between their testimony and that of Brooks in view of the subse- quent events. They then walked up the manway where Brooks was located. As. they approached, Brooks revealed himself and told them that he had seen them washing themselves. 20 This occurred prior to Elmer Lobb' s joining Local No. 9. THE FEDERAL MINING AND SMELTING COMPANY 207 Brooks in testifying denies that he, then told the Lobb brothers that they were discharged. He testified that he went up the man- way followed by the Lobb brothers without saying anything further. The testimony of the Lobb brothers is that Brooks told them that they were discharged when he first spoke to them and accused them of washing contrary to orders. In view of our finding, hereinafter made, that Elmer cursed Brooks on the way to the shaft, which is consistent only with Brooks' provoking the cursing by discharging them, we accept the version of the Lobb brothers and _ find that Brooks did discharge them immediately. According to Brooks, Elmer cursed him in an obscene manner in the presence of other employees while on the way to the shaft. Elmer denies that he cursed Brooks. However, when Local No. 9's grievance committee subsequently discussed the case with the re- spondent's officials the committee virtually admitted that Elmer had cursed Brooks.21 In view of this admission we find that the cursing did take place. When the case was taken up by the grievance committee, and an investigation made by the respondent's officials, .during the course of which Brooks was told by the respondent's superintendent never to spy on the men in the dark again, a decision was made by the respondent to reinstate Orville, but to deny reinstatement to Elmer, because of his cursing Brooks. Elmer had not "rustled" for employ- ment at the time of the hearing. Three or four.days after his discharge, when Orville was informed that he might return to work, he insisted that his back pay be guar- anteed. The respondent's mine superintendent who talked with Orville about the matter did not tell Orville that back pay would not be forthcoming, but refused to guarantee it. Orville left the superintendent's office insisting that his back pay be guaranteed before he would return to work. At the time of the hearing he had not yet gone back to the Morning Mine. Under all the circumstances we find that the respondent did not discriminate in regard to the hire or tenure of employment of Elmer Lobb or,Orville Lobb. Andrew Legall Andrew Legall first worked for the respondent in September 1935. He worked on flume construction, in the yard, and later worked in the mine. After a few months, he voluntarily left the respondent's employ. He returned to work for the respondent in February 1936, 2' Paul Webster, financial secretary of Local No. 9 and member of the grievance com- mittee which discussed the Lobb cases, testified concerning his statements to the re- spondent's officials : " I admitted it (Elmer Lobb's cursing Brooks ) 'was .. probably correct... . 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and was assigned to the yard to shovel snow. He worked steadily in the yard under Foreman Gipson until September 1937, when he was temporarily laid off. From that time until the time of the hearing he worked irregularly in the yard. Legall joined Local No. 9 in March 1936. During the strike he engaged in picketing . He served on the hospital and dance com- mittee and generally took an active part in union affairs. On September 27, 1937, Gipson informed Legall that because work was slack he was to be laid off for a few days. Legall did not work again until November 20, 1937, although he made inquiry as to whether work was available . During most of October Legall was. in Butte, Montana , seeking work there. Legall asserted and the respondent did not deny that men junior to him were retained on the yard crew to work regularly. However, the respondent showed that it followed no policy of seniority. Gipson testified that the men he retained on the regular crew, he considered to be more desirable than Legall and that had Legall been available in October he would have been put to work. Legall's name was never removed from the pay roll. From all the evidence we find that the respondent did not dis- criminatorily refuse to give Legall steady employment. Harry Purcell Harry Purcell was first employed by the respondent in March 1935. After working for several months as a timberman 's helper, he was advanced to the job of timberman. On March 1, 1937, he was given an assignment of work by Foreman Brooks to be completed within a specified time. When he failed to complete it within the period fixed he asked for his time. He returned to the respondent's employ a month later and worked as a timberman 's helper. Purcell became a member of Local No. 9 in November 1936. He served on the union grievance committee and was vice president of Local No. 9 for a period . During the strike he was active on the picket line. In August 1937, during the celebration of the end of the strike at the Sunshine Mine, Purcell gained considerable notoriety by forcibly preventing a group of men from tearing down Local No. 9's "C. I. 0." sign. Following the strike at the Morning Mine, Purcell resumed work as a timberman 's helper. He was advanced to the job of timberman by Shift Boss Peterson and worked in that position until about Oc- tober 1937, when, at his own request, he was reassigned to the job of timberman 's helper. On December 11 on Brooks' order he was assigned to mucking.22 After a few days at that type of work his 0 A mucker receives 25 cents per day less than a timberman's helper. THE FEDERAL MINING AND SMELTING COMPANY 209 shift boss made him a timberman's helper again, but Brooks in turn ordered that Purcell be returned to mucking. Brooks testified that he ordered Purcell assigned to mucking be- cause he "wasn't doing his work." Brooks further testified that he had complained to Purcell's shift boss a year earlier concerning his work. Autio, Purcell's shift boss, testified that he considered Pur- cell a satisfactory worker, qualified to do the work of either a timber- man or a timberman's helper. We find that Purcell was a competent worker. While the record does not persuade us that Purcell deserved the treatment which he received from Brooks, upon all the evidence we find that the respondent, by assigning Purcell to less desirable employment, did not discriminate against him within the meaning of Section 8 (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, B, above, occurring in connection with the operations of the respond- ent described in Section I, above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom, and to take certain. affirmative action which we find necessary to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. The operations of the respondent, The Federal Mining and Smelt- ing Company, a corporation, occur in commerce, within the meaning of Section 2 (6) of the Act. 2. Mullan Local No. 9, International Union of Mine, Mill and Shelter Workers, is a labor organization, within the meaning of Section 2 (5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in and is not engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, The Federal Mining and Smelting Company, a corpora- tion, Wallace, Idaho, and its officers, agents, successors, and assigns shall : 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section' 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Immediately post notices in conspicuous places throughout the Morning Mine and Mill, and maintain such notices for a period of at least sixty (60) - consecutive days, stating that the respondent will cease and desist in the manner aforesaid ; (b) Notify the Regional Director for the Nineteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed in so far as it alleges that the respondent discrimi- nated in regard to the hire and tenure of employment or any term or condition of, employment of Bernard Aho, William Huotari, Vollie Kathka, Harry Harker, Louis Roundtree, Fred Licht, Harold Rus- sell, Elmer Lobb, Orville Lobb, Harry Purcell, and Andrew Legall.